Rosenworcel at FCC and Congressional Leaders Highlight Implementation of Bipartisan Anti-Digital Discrimination Law

The FCC today adopted rules aimed at preventing and eliminating digital discrimination, defined as limiting access to broadband services based on income level, race, ethnicity, color, religion, or national origin.

Not all commissioners supported the rules. The three Democratic commissioners voted in favor of the rules, while the Republican commissioners dissented.

In an address commemorating the adoption of the rules, FCC Chair Jessica Rosenworcel said that when Congress adopted the Bipartisan Infrastructure Law, it tasked the FCC with developing “rules to facilitate access to broadband and prevent and eliminate digital discrimination.”

The rules are essential to the goal of getting broadband to everyone in the U.S., Rosenworcel said.

Noting that certain communities in the U.S. are “underserved and overlooked,” Rosenworcel argued that “If we [want] to close the digital divide, we have to address digital discrimination.”

According to an FCC announcement, the rules enable the FCC to “protect consumers by directly addressing companies’ policies and practices if they differentially impact consumers’ access to broadband internet . . .or are intended to do so.”

The commission goes on to say that the rules “focus on the very real problem of outcome, such as when decisions untainted by discriminatory intent nevertheless cause different communities to receive different access to broadband services.”

Consumers will be able to submit complaints through a portal, and the commission will review them. The FCC will be able to facilitate mediation and penalize companies for violating the rules.

A Dissenter

In comments at the monthly FCC meeting today, where the digital discrimination rules were adopted, Commissioner Brendan Carr argued vehemently against the rules, which he said give the FCC “nearly limitless power to veto private sector decisions.”

According to Carr, the order empowers the FCC to “regulate every service provider’s network deployment, network reliability, network maintenance, customer premises equipment, installation, speed, capacity, latency data cap, throttling, pricing, promotional rates, late fees, opportunity for equipment rental, installation time, service termination fees and use of customer credit and accounting history, mandatory arbitration clause, pricing, discounts, customer service, language options, credit checks, marketing or advertising contract renewal, upgrades, transfers to another covered entity and in-service suspension.”

Carr quipped that “As exhausting as it is to read that list, the FCC says that it is not an exhaustive list.”

He also argued that “despite the repeated refrain that the agency has no interest in regulating broadband rates, the commission votes today to regulate broadband rates.”

Industry Reaction

Several telecom industry associations argued that the rules would create uncertainty and would be counterproductive to bridging the digital divide. Among those making this argument were USTelecom and CTIA. The Information Technology & Innovation Foundation (ITIF), which calls itself a “nonprofit tech policy think tank,” also made a similar argument.

In a prepared statement, USTelecom President and CEO Jonathan Spalter was especially negative, arguing that the rules are “overly intrusive, unworkably vague and ultimately harmful steps in the wrong direction.”

One of the more measured responses came from NTCA—The Rural Broadband Association. In a prepared statement, the association’s CEO Shirley Bloomfield noted that “we share the overarching goal of creating an environment in which broadband access, adoption and engagement are fostered for every American.”

She noted that NTCA still needs to see the final order to fully understand the impact, but added that “Especially for smaller rural operators, it is important that the . . . rules take proper account – as Congress intended — of technological and economic considerations that clearly affect the advancement of universal service.

“To avoid undermining the ongoing progress already being made toward overcoming digital divides, the rules must not create an uncertain environment where broadband providers will be anxious that decisions they make, however well-intended and prudent as a matter of business planning, could be subject to second-guessing by regulators and potential penalty.”

She said she hopes the commission will be open to further discussions about the scope and implementation of the digital discrimination rules.

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